Admin. for Children s Services v. Morales OATH Index No. 1210/13 (Aug. 5, 2013), aff d, NYC Civ. Serv. Comm n Case No. 35547 (Feb. 18, 2014), appended Special officer disobeyed an order, engaged in unprofessional behavior, and made profane, disrespectful, or threatening remarks to supervisors. 25-day suspension recommended. NEW YORK CITY OFFICE OF ADMINISTRATIVE TRIALS AND HEARINGS In the Matter of ADMINSTRATION FOR CHILDREN S SERVICES Petitioner - against - JUANA MORALES Respondent REPORT AND RECOMMENDATION KEVIN F. CASEY, Administrative Law Judge Petitioner brought this disciplinary action against respondent, a special officer, under section 75 of the Civil Service Law. In two sets of charges, petitioner alleged that respondent: disobeyed orders; failed to dress appropriately; failed to obey agency rules; was discourteous; performed her duties in an inefficient or unprofessional manner; used indecent, abusive, profane, threatening or intimidating language; and committed offenses which may threaten good or order and discipline or discredit the agency (ALJ Ex. 1). At a three-day hearing which ended on June 20, 2013, petitioner presented six witnesses and offered documentary evidence. Respondent testified in her own behalf, called four other witnesses, and also presented documentary evidence. For the reasons that follow, I find that petitioner proved most of the charges and recommend a 25-day suspension without pay. ANALYSIS Respondent is a special officer at Crossroads, a secure juvenile facility. The charges arise from allegations that respondent used inappropriate language on four occasions from August to October 2012, and on one of those occasions she was out of uniform and insubordinate. Respondent denied any wrongdoing.
-2- Preliminary Issue Among other defenses, respondent claimed that Sergeant Murcia, petitioner s main witness, should not be believed because he had sexually harassed her. According to respondent, before any of the present disciplinary charges were filed, Sergeant Murcia approached her at work, licking his lips, and told her to button up her uniform shirt (Tr. 224). He put his thumb under her bra, on her breast (Tr. 224). She pushed him away, told him that she would report the incident, and warned him to never touch her again (Tr. 224-25). The evidence did not support respondent s claim of sexual harassment. Sergeant Murcia, who denied respondent s claim, impressed me as a conscientious employee who made sincere efforts to recall events and conversations as they occurred (Tr. 44). In contrast, respondent lacked credibility. Her testimony was evasive, inconsistent, and unsupported by her own witnesses. Respondent offered conflicting testimony about when the alleged harassment took place. In a document submitted to the New York State s Division of Human Rights, respondent reported that the incident occurred on or about August 12, 2012 (Tr. 321-22; Pet. Ex. 22). However, timekeeping records showed that Sergeant Murcia did not begin working at Crossroads until August 27, 2012 (Tr. 383; Pet. Exs. 29, 30). Confronted with this evidence, respondent offered vague excuses to explain why she had specified August 12, I went by some papers that I had that had some stuff on it and she suggested that petitioner had doctored the timekeeping records (Tr. 322). Respondent also offered conflicting testimony about how the alleged harassment occurred. Denying a charge that she dressed inappropriately, respondent initially testified that she always wore an undershirt beneath her uniform; thus, even if three buttons were open, her breasts were not exposed (Tr. 228-30; Resp. Ex. G). To illustrate, she introduced two photographs of her wearing round-collared t-shirts beneath her uniform (Tr. 228, Resp. Exs. G1, G2). Asked how Sergeant Murcia could have put his thumb beneath her bra, under the front of her uniform shirt and beneath her t-shirt, respondent changed her story and claimed that she wore a v-neck undershirt (Tr. 324-26). In addition, respondent provided implausible testimony regarding where the alleged harassment took place. She testified that the incident occurred in the control room, near a
-3- window facing the lobby (Tr. 329-30; Pet. Exs. 24, 25, 26). At one point, she claimed that there was nobody in the lobby (Tr. 346, 350). At another point, she claimed that Special Officer Cawthorn was posted outside the window and, after noting her reaction, he got up to see what was happening (Tr. 224, 351-53). It is unlikely that Sergeant Murcia would have molested respondent near a window facing another officer and, furthermore, respondent did not call Officer Cawthorn as a witness to support her claim. The timing of respondent s allegation of harassment was also suspect. It does not appear that she ever specifically accused Sergeant Murcia of touching her breast until after he accused her of misconduct. Because sexual harassment victims may be reluctant to come forward for many reasons, the lack of a prompt complaint is generally unremarkable. Here, however, the lack of a timely, specific complaint was odd because respondent did not hesitate to accuse coworkers and supervisors of wrongdoing. Respondent accused co-workers and supervisors of corruption, child abuse, conspiracy, and fraud (Tr. 279, 341; Pet. Exs. 8a, 15). For example, she told investigators on September 2012 that there were all kinds of gross security breaches, a juvenile counselor threatened her, there was a hostile work environment, Director of Administration Smith was corrupt and lying, Sergeant McCall told her to ignore the odor of marijuana in the facility, and Sergeant Murcia asked her inappropriate questions about her personal life (Pet. Exs. 8a, 15). Respondent also wrote many complaints to Susan Starker, head of petitioner s law employment law unit, without making any reference to sexual harassment (Tr. 313). Most importantly, after she was served with disciplinary charges, respondent filed a sexual harassment claim with the State Division of Human Rights on October 16, 2012 (Pet. Ex. 19). In a two-page handwritten verified complaint, respondent accused Sergeant Murcia of making inappropriate remarks and causing her discomfort by gazing at her, but she did not allege that he touched her (Pet. Ex. 19). One witness, Sergeant Johnson, recalled speaking with respondent in September 2012, after Sergeant Murcia had accused her of cursing at him (Tr. 56). Respondent angrily accused Sergeant Murcia of lying and said, without elaboration, that he had inappropriately touched her (Tr. 56). Sergeant Johnson told respondent to discuss the matter with a union representative or Director Smith (Tr. 56). There was no evidence that respondent followed that advice.
-4- Instead, respondent claimed that she told four colleagues that Sergeant Murcia made her feel uncomfortable (Tr. 336). But none of those colleagues testified in support of her claim. Respondent also said that she had reported Sergeant Murcia s sexual harassment to former supervisors, Sergeant McCall and Associate Commissioner Pu-Folkes, who no longer worked for the agency (Tr. 278, 309; Pet. Ex. 16). Asked whether she would be surprised to learn that one of those witnesses had no recollection of receiving her report, respondent testified, I don't know how that's possible. I handed it to him. I don't see how that's possible but he no longer works for the agency. So we can't question him (Tr. 278). On rebuttal, both former supervisors refuted respondent s claim. Former Sergeant McCall, now a fraud investigator for the Human Resources Administration, credibly testified that respondent never said anything to her about Sergeant Murcia (Tr. 376-78). Former Associate Commissioner Pu-Folkes, now a captain with the New York City Police Department, credibly recalled that he occasionally chatted with respondent about her concerns and she never told him that Sergeant Murcia had acted or spoken inappropriately and he had no recollection of a report from respondent containing allegations about Sergeant Murcia (Tr. 381). In short, the credible evidence did not support respondent s claim that Sergeant Murcia touched her inappropriately. It appears that respondent made up that claim after Sergeant Murcia accused her of misconduct. August 30, 2012 (Complaint 66054-057-000, Charge I, Specification 1) Petitioner alleged that, on August 30, 2012, respondent made inappropriate and threatening remarks about Director Smith (ALJ Ex. 1). Sergeant Murcia testified that he was posted outside the control room at Crossroads that day and he noticed that respondent appeared to be upset (Tr. 11-12). Sergeant Murcia asked respondent if she was okay and she replied, I m all right and She s not my supervisor. She s yours (Tr. 13). He asked respondent who she was referring to and she replied, She s not my boss, Ms. Smith (Tr. 13). Sergeant Murcia s incident report noted that respondent also said, There s a lot of crooked administrative staff up there getting away with stuff up there, you watch they re going to get theirs, you ll see and Wait till I get out of here, I ll get her ass (Tr. 13; Pet. Ex. 2). Director Smith recalled that respondent asked to speak with her that day (Tr. 114). But Director Smith, who had a prior run-in with respondent, declined to speak with her (Tr. 114,
-5-188). Later, Director Smith spoke to sergeants, who reported respondent s remarks (Tr. 111, 115-16; Pet. Ex. 12). Director Smith had no idea what was meant by, Wait till I get out here, I ll get her ass, but she considered it a threat (Pet. Ex. 12). Respondent testified that she was not assigned to the control room on August 30 and the incident described by Sergeant Murcia never occurred (Tr. 217-18, 220; Resp. Ex. F). She denied saying that Ms. Smith was not her director or I ll get her ass (Tr. 221). I found petitioner s evidence credible, especially Sergeant Murcia s detailed report, written the day of the incident. Notably, Sergeant Murcia was new to Crossroads in August 2012. He had no motive to lie. Indeed, he credibly recalled that he approached respondent because she appeared to be upset and he was concerned about her well-being (Tr. 11; Pet. Ex. 2). Director Smith s testimony corroborated Sergeant Murcia. She confirmed that he promptly reported the incident and she considered it a threat. Moreover, Director Smith credibly recalled that respondent approached her that day, which suggests that there was an incident, in contrast to respondent s claim that nothing happened. Respondent s claim that she was not assigned to the control room that day did not undercut petitioner s case; she could have entered the control room any time during her tour. Not every workplace disagreement is misconduct. Admin. for Children s Services v. Goldman, OATH Index No. 985/12 at 6 (July 3, 2012), adopted, Comm r Dec. (July 13, 2012). Relevant considerations include evidence of workplace disruption or the use of threats, insolence, or profanity. Id. Respondent s initial grousing that Director Smith was not her boss was too minor to be misconduct. But respondent s later remarks that she will get her ass and that crooked administrators will get theirs, went beyond a routine workplace disagreement. Those comments were disrespectful and a physical threat or a threat to harm professional reputations. See Human Resources Admin. v. Levitant, OATH Index No. 129/07 (Feb. 2, 2007), app. dism., NYC Civ. Serv. Comm n Item No. CD 07-84-D (Aug. 14, 2007) (employee s comments to supervisor that you will be sorry and telling the supervisor that she would be in trouble if she did not abide by the employee s rules, deemed insubordinate, threatening, and disrespectful). The specification should be sustained.
-6- September 8, 2012 (Complaint 66054-057-000, Charge I, Specification 2) Petitioner alleged that, on September 8, 2012, respondent disobeyed Sergeant Murcia s orders regarding her uniform, made unprofessional comments, and threw a copy of petitioner s Standard of Conduct at him, narrowly missing his face (ALJ Ex. 1). Sergeant Murcia testified that he saw respondent in the control room that day and she was wearing chains, a collar brass was missing, and three buttons on her uniform shirt were unbuttoned (Tr. 15). The chains were unsafe because a resident could grab them during a struggle (Tr. 15). Sergeant Murcia stated that many times he told respondent and other officers to button their shirts and he repeatedly spoke to respondent about her uniform that day (Tr. 16, 43-44). Respondent told him that she did not have to listen to him because he just got there and was brand new (Tr. 16, 43). Sergeant Murcia testified that respondent pointed to a pamphlet with petitioner s standard of conduct and said that his claims regarding uniforms were not in there. Respondent added, Being that it s not in here, I don t have to listen to you, or anything that you say (Tr. 17). When Sergeant Murcia told respondent that she had to follow directives, she threw the standard of conduct at him, narrowly missing his face (Tr. 17). As Sergeant Murcia wrote a report about the incident, respondent said, I ll say what I want, and no one is going to tell me what to say and how to wear my clothes, and you re harassing me. And I say what I want Boo (Tr. 18). In her testimony, respondent initially questioned whether she was in the control room, It might have been possible, but I m not sure (Tr. 222). She then offered her recollection of the incident (Tr. 223). According to respondent, she had one or two buttons of her shirt open, because she had difficulty breathing, hot and cold flashes, and anxiety due to things that transpire in the facility (Tr. 223, 226-27). Sergeant Murcia asked her if there was a policy regarding uniform shirts (Tr. 223). He asked for a copy of petitioner s standard of conduct and respondent handed it to him (Tr. 223). She denied throwing anything (Tr. 223, 226). I credited Sergeant Murcia s testimony that he repeatedly ordered respondent to button her uniform shirt, she disobeyed those orders, she said that he could not tell her how to wear her clothes, and she said that she did not have to listen to him. However, petitioner failed to prove that her use of the term Boo was additional misconduct or that respondent threw the standard of conduct at Sergeant Murcia.
-7- Sergeant Murcia s testimony regarding the uniform was credible. He testified that he repeatedly warned respondent to button her uniform because he did not want her to get into trouble (Tr. 50). In contrast, respondent offered inconsistent and unconvincing denials. Respondent claimed that she told Sergeant Murcia that, due to anxiety, she left two buttons open and he was okay with that (Tr. 231). She denied telling him, I can wear my clothes any way I want or You just got here (Tr. 231). However, in a report that she wrote two weeks after the incident, respondent said that she apologized to Sergeant Murcia for saying, Don t tell me how to wear my uniform Boo (Tr. 275; Pet. Ex. 16). In an interview with investigators, she recalled telling Sergeant Murcia that she could dress anyway that she wanted and he was not going to tell how to dress (Tr. 267; Pet. Exs. 8a, 15 at 6-7). She also conceded in the interview that she could be insubordinate at times (Tr. 268; Pet. Exs. 8a, 15 at 11). Confronted with the inconsistencies between her testimony and earlier statements, respondent became evasive (Tr. 267, 275-76). She testified that she thought her comment about being insubordinate was off the record (Tr. 267). As for stating that Sergeant Murcia could not tell her how to dress, respondent claimed that she did not make those remarks on the date alleged in the complaint (Tr. 232, 258, 275-76). Respondent also testified that she admitted to using the term Boo because she considered it somewhat playful and not disrespectful (Tr. 232). Though petitioner did not offer proof of a written policy regarding uniforms, a sergeant has the authority to order an officer to button a uniform and an officer must obey that order. See Ferreri v. NYS Thruway Auth., 62 N.Y.2d 855 (1984) (absent threat to health or safety, employee must obey now, grieve later when given a lawful order within the supervisor s authority); see also Human Resources Admin. v. Diggs-Rodriguez, OATH Index No. 1733/00 at 5-6 (June 8, 2000), aff d, NYC Civ. Serv. Comm n Item No. CD 01-66-SA (July 30, 2001) (employee must comply with supervisor s directions, even if those directions are incorrect or contrary to established procedures). Although respondent suggested that buttoning her shirt would threaten her health or safety, there was no credible evidence to support that claim. Respondent disobeyed a lawful order and challenged Sergeant Murcia s authority. See Human Resources Admin. v. Kissee, OATH Index No. 2664/09 at 4 (July 9, 2009) (sustaining charge of insubordinate behavior and discourtesy where employee challenged supervisor, Why are you calling for me? You re not my daddy. You re nothing ).
-8- As for respondent s use of the term Boo, I find that respondent used the word, but it did not amount to misconduct. Sergeant Murcia testified that he considered the term to be extremely, extremely, extremely offensive (Tr. 18). That testimony seemed exaggerated. Boo is a popular term equivalent to boyfriend or girlfriend, possibly derived from beau or beautiful. See Urbandictionary.com. In an earlier era, respondent might have used the term Honey. Repeated use of such term would be unprofessional or inappropriate. But respondent s one-time use of the word Boo, during a discussion about uniforms, was too fleeting to be deemed separate misconduct under the Civil Service Law. See Dep t of Sanitation v. Littles, OATH Index No. 1161/12 at 3 (June 15, 2012), adopted, Comm r Dec. (July 30, 2012) (dismissing misconduct charge where employee told supervisor, Yo Dog, if he ain t here by a quarter to, I am leaving ). The evidence also failed to prove that respondent threw petitioner s standard of conduct at Sergeant Murcia. Notably, petitioner failed to secure and preserve surveillance video from the control room. Those recordings are routinely destroyed after 30 days (Tr. 94-96, 111-12). Though investigators interviewed respondent on September 24, 2012, when the recordings were available, petitioner took no steps to review or preserve this evidence (Tr. 96, 157). See Voom HD Holdings, LLC v. EchoStar Satellite, LLC, 93 A.D.3d 33, 41 (1st Dep t 2012) (Once a party reasonably anticipates litigation, it must suspend routine document retention policy and implement a litigation hold to prevent routine destruction of electronic data). Petitioner argued that the failure to review and preserve the video was an inadvertent mistake (Tr. 157-58). But that is not a valid excuse. Because petitioner had exclusive control of the video, which was relevant to respondent s defense, respondent is entitled to a sanction, such as a negative inference, where petitioner s negligence resulted in the loss of the video. See Voom HD Holdings, LLC, 93 A.D.3d at 45; see also People v. Handy, 20 N.Y.3d 663, 669 (2013) (inmate entitled to an adverse inference instruction where surveillance video of alleged wrongdoing was destroyed prior to trial and criminal prosecution was foreseeable). Other evidence also undercut the claim that respondent threw petitioner s standard of conduct at Sergeant Murcia. Special Officer Bradley was in the control room, with his back turned away, and he overheard a disagreement between respondent and Sergeant Murcia regarding uniforms (Tr. 200). But he did not hear anything being thrown (Tr. 201). It may be
-9- that respondent tossed some papers on a desk where Sergeant Murcia sat, but petitioner did not prove that she threw something at his face. If respondent had thrown something at Sergeant Murcia, nearly striking him in the face that would have been a serious incident of workplace violence. Yet Sergeant Murcia s actions immediately afterwards suggest that there was no violence. He did not notify a tour commander or a supervisor or make an entry in the control room log book within the hour, as required (Tr. 30-31, 71, 104, 124-25, 164-65, 193-94; Resp. Ex. A). Instead, Sergeant Murcia waited three days to submit an incident report to Director Smith (Tr. 19; Pet. Ex. 3). The specification should be sustained, in part. Petitioner proved that respondent s refusal to button her uniform and comments challenging Sergeant Murcia s authority were insubordinate, discourteous, and unprofessional. However, the evidence failed to prove that respondent s use of the term Boo was misconduct or that she threw petitioner s standard of conduct that nearly struck Sergeant Murcia. September 9, 2012 (Complaint 66054-057-000, Charge I, Specification 3) The petition alleged that on September 9, 2012, during a discussion with Sergeant Murcia respondent called him a snitch, used profane language, and expressed an unwillingness to follow agency policy regarding confidential information (ALJ Ex. 1). Petitioner did not specifically allege that respondent disclosed confidential information to non-staff. Rather, the petition alleged that respondent was unprofessional when she threatened to do so (ALJ Ex. 1). Sergeant Murcia testified that he spoke with respondent in the control room that day (Tr. 21). Respondent called him a snitch for reporting to a state agency that a counselor had physically abused a resident (Tr. 21, 23). She told Sergeant Murcia that everybody in the building was pissed off at him, everybody knew that he was a snitch, and that was fucked up (Tr. 21). He told respondent that they had a duty to report incidents and he told her that he had not mentioned the incident to anyone else; thus, if others knew about the incident, they must have learned about it from her (Tr. 21). Respondent replied, Yeah, that s right. I said it. And you can t tell me what to do. It s my mouth. I ll talk to whoever I want to talk to, and I ll say whatever I want to say (Tr. 21). In addition, Sergeant Murcia recalled a conversation that he had in the visiting area with a parent and a child resident (Tr. 23). They appeared upset and they said that respondent had been
-10- discussing the reasons for room searches with them (Tr. 23). Sergeant Murcia later told respondent that she should not be talking to residents and their parents about internal agency matters, because it might endanger staff (Tr. 23-24). In reply, respondent stated that she bumped into parents outside the facility, she would continue to talk with anyone that she wanted to talk to, so parents could call in and management could get fucked over (Tr. 24). Sergeant Murcia wrote a report regarding respondent s comments (Tr. 25; Pet. Ex. 5). In his report, signed two days after the incident, Sergeant Murcia referred a series of comments and statements that respondent made regarding management and agency policies (Pet. Ex. 5). He identified Sergeant Johnson as a witness (Pet. Ex. 5). Sergeant Johnson testified that he did not recall overhearing any incident in the control room on September 9, but he confirmed that he spoke with Sergeant Murcia and respondent separately, on that day or the next, and they complained about each other (Tr. 54-56). In her testimony, respondent denied calling Sergeant Murcia a snitch, telling him that she could speak to anyone that she wanted, and speaking with parents outside the facility (Tr. 235-36). Respondent recalled that Sergeant Murcia asked her to write a report about a counselor who allegedly choked a resident (Tr. 233). She refused to write the report because she did not see the incident and she opined that Sergeant Murcia was trying to get her to write a false report (Tr. 294). Respondent denied disclosing confidential information to parents and she testified that she never told parents to complain about agency management (Tr. 235-36). Special Officer Alleyne testified for respondent that she was posted outside the control room on September 9 and she did not witness anything unusual (Tr. 206). This specification should be sustained. Petitioner s evidence was more credible than respondent s. Sergeant Murcia was clear about what respondent said. It is likely that respondent called him a snitch and stated that she had encouraged residents and their families to complain about the agency. Such behavior was consistent with respondent s conduct before and during the hearing. Respondent s denial of wrongdoing were vague and inconsistent. For example, she initially insisted, I don t talk to anybody when I leave that place because I have nothing to do with people in the street (Tr. 236). But she later testified that she occasionally saw parents while on a smoking break and she might bump into one of them on her way to and from work, and she would talk to them if she considered their questions appropriate (Tr. 285-86).
-11- It was irrelevant that Sergeant Johnson did not hear anything in the control room. Sergeant Murcia never said that anyone else was present in the control room when respondent called him a snitch and said that she had a right to discuss agency business with non-staff. In his report, Sergeant Murcia referred to Sergeant Johnson as a witness because he had a later, separate conversation with respondent (Pet. Ex. 5). Sergeant Johnson s testimony confirmed that account. Likewise, it did not matter that Officer Alleyne never noticed anything unusual. There was no reason for her to hear the conversation; she was posted outside the control room. The evidence showed that respondent called Sergeant Murcia a snitch, made inappropriate comments, and insisted that she had a right to discuss agency matters with nonstaff. This was discourteous and unprofessional conduct. The specification should be sustained. October 17, 2012 (Complaint 66054-057-001, Charge I, Specification 1) Petitioner alleged that respondent used abusive, profane, threatening, or intimidating language, undermined good order and discipline, and discredited the agency, during a phone conversation with Sergeant Johnson on October 17, 2012 (ALJ Ex. 1). Sergeant Johnson testified that he spoke with respondent at about 6:20 p.m. that day, and she was upset that Sergeant Murcia had filed charges against her (Tr. 56). She was angry, she said that the charges were false, and said that she did not want to come to work (Tr. 56). Sergeant Johnson recalled that he told respondent that if she was sick she should get documentation but she could not call out sick because she was angry (Tr. 57). Respondent vented, called Sergeant Murcia a fucking liar, and said that she was going to get him for his lies (Tr. 57). She said that she was going to go after all supervision (Tr. 57). Sergeant Johnson made an entry regarding the conversation in a log book, notified Director Smith, and submitted an incident report (Tr. 57, 60; Pet. Exs. 5, 6). Sergeant Murcia recalled receiving a text from Sergeant Johnson about an hour later (Tr. 27). Sergeant Johnson s text expressed concern for Sergeant Murcia s safety and reported that respondent said, everyone can kiss her ass and after going to OATH she was going to get Sergeant Murcia, whom she called a bullshit artist, liar, and mother-fucker (Tr. 27-28). Respondent acknowledged that she spoke to Sergeant Johnson a few days after receiving disciplinary charges, but she testified that Sergeant Johnson s testimony regarding the substance
-12- of the conversation was false (Tr. 245, 294). She denied using profanity or making threats (Tr. 245, 295, 342-43). Respondent also denied telling Sergeant Johnson that she was going to call in sick because she was angry (Tr. 343). She testified that she simply told Sergeant Johnson that she was going to be out sick due to a line of duty injury (Tr. 295, 342). The evidence proved that respondent made a profanity-laced, threatening call to Sergeant Johnson. His detailed testimony regarding respondent s tirade was corroborated by his contemporaneous reports. And, for the most part, respondent s denials were not credible. Respondent implausibly claimed that she was not angry when she received the disciplinary charges. She testified that she found them to be funny and hilarious and she could not be angry with Sergeant Murcia, because he could not help himself (Tr. 296-67). Respondent s actions contradicted her testimony. Indeed, she did go off on everybody after she was served with charges. Prior to the hearing, respondent made assorted complaints against supervisors and she filed discrimination complaints against Director Smith and Sergeant Murcia. During the hearing, respondent barely concealed her anger as she continued to hurl allegations towards supervisors and the agency. It is understandable that respondent was angry about the disciplinary charges and, as noted, not every workplace disagreement is misconduct. However, respondent s referring to Sergeant Murcia as a bullshit artist and mother-fucker, and her threats to get him and go after management constituted misconduct. See Levitant, OATH 129/07 at 10 (employee s comment to supervisor, If you re going to fuck with me, I m going to fuck with you deemed inappropriate and demeaning); see also Dep t of Correction v. Cross, OATH Index No. 1348/13 at 2 (June 6, 2013) (a correction officer s comments about a supervisor, tell her to fuck off, I can t fucking stand her, deemed disrespectful). I did credit one part of respondent s testimony regarding her conversation with Sergeant Johnson. Respondent testified that she stated that she was going to be claiming a line of duty injury. Documentary evidence showed that on October 12, the day she received the disciplinary charges, respondent went to a hospital complaining of pain and injury to her back and knee, and she initiated a worker s compensation claim on October 18 (Pet. Ex. I). It is likely that she referred to this when she spoke to Sergeant Johnson on October 17. Even so, that does not detract from the strength of petitioner s case or excuse respondent s conduct. The credible
-13- evidence showed that respondent used profane, threatening language and engaged in unprofessional behavior. This charge and specification should be sustained. FINDINGS AND CONCLUSIONS 1. On August 30, 2012, respondent used unprofessional and abusive language towards a supervisor, as alleged in Complaint 66054-057-000, Charge I, Specification 1. 2. On September 8, 2012, respondent disobeyed an order and used unprofessional, abusive language towards a supervisor, as alleged in Complaint 66054-057-000, Charge I, Specification 2, when she told a supervisor, You re not going to tell me what do, you just got here and I don t have to listen to you and I m not. 3. Petitioner failed to prove that respondent committed misconduct when she referred to a supervisor as Boo or that she threw a copy of the agency s Standard of Conduct at the supervisor s head on September 8, 2012, as alleged in Charge I, Specification 2. 4. On September 9, 2012, respondent used unprofessional and abusive language towards a supervisor, as alleged in Complaint 66054-057-000, Charge I, Specification 3. 5. On October 17, 2012, respondent used indecent profane, threatening or intimidating language, as alleged in Complaint No. 66054-057-001, Charge I, Specification 1. RECOMMENDATION After making these findings, I requested and received a summary of respondent s personnel history. Petitioner hired respondent in 2005. In 2007 she received a five-day suspension and the loss of five days of annual leave for submitting a false report. She also received a commendation in 2007, but her most recent performance evaluation rated her work as conditional, with unsatisfactory marks due to her failure to adhere to time and leave regulations and refusal to follow orders, for which she received oral and written warnings in April and May, 2012. Petitioner now seeks a 30-day suspension (Tr. 404). Because petitioner
-14- failed to prove one of the charges that respondent threw a manual at Sergeant Murcia a slightly lesser penalty should be imposed. Isolated use of unprofessional language generally results in a penalty of five to ten days suspension, depending on the employee s tenure and disciplinary record. See, e.g., Health & Hospitals Corp. (Woodhull Medical & Mental Health Ctr.) v. McMillan, OATH Index No. 1402/06 (July 24, 2006) (five-day suspension for long-term employee, with no prior disciplinary record, who engaged in loud, disrespectful, and disruptive confrontation with supervisor); Goldman, OATH 985/12 at 8 (10-day suspension imposed on case assistant for use of profane language to supervisor, where employee had committed serious prior misconduct). Where discourteous behavior is accompanied by a refusal to obey an order, the recommended penalty has been a ten-day suspension. See, e.g., Dep t of Correction v. Buford, OATH Index No. 388/02 (June 17, 2002), aff d, Comm n Dec. (Aug. 15, 2002), aff d, NYC Civ. Serv. Comm n Item No. CD 03-49-SA (June 12, 2003) (ten-day suspension for cursing at a captain and refusal to follow an order immediately). Sterner penalties are imposed for repeated acts of discourtesy by employees who have disciplinary records. See, e.g., Kissee, OATH 2664/09 at 11 (35-day suspension imposed on clerical associate for multiple acts of insubordination or discourtesy); Admin. for Children s Services v. Papa, Comm r Dec. (Oct. 21, 2005), modifying on penalty OATH Index No. 1622/05 (Aug. 30, 2005) (30-day suspension imposed for five occasions of discourtesy or insubordination). Respondent, an eight-year employee with a disciplinary record, engaged in discourteous, unprofessional, or threatening conversations with her supervisors on four occasions. A substantial penalty is appropriate. It is troubling that respondent repeatedly engaged in unprofessional behavior despite receiving multiple warnings about her conduct earlier in 2012. Moreover, after receiving the present charges, respondent made unfounded claims against supervisors. Respondent must recognize that, as special officer she is expected to act in a respectful, professional manner. Failure to do so will result in more serious penalties and could lead to loss of her employment. See Health & Hospitals Corp. (Metropolitan Hospital Ctr.) v. Ahmed, OATH Index No. 567/05 at 6 (Jan. 7, 2005) ( Respondent s refusal to change her behavior and unwillingness to follow supervision are grounds for termination ); Admin. for Children s Services v. Hallman, OATH Index No. 1269/05 (Mar. 16, 2005) (noting that agency
-15- was not required to subject other employees to abuse, termination of employment recommended for clerical worker who engaged in repeated disrespectful and discourteous conduct). Accordingly, I recommend a penalty of 25 days suspension without pay. August 5, 2013 Kevin F. Casey Administrative Law Judge SUBMITTED TO: RONALD E. RICHTER Commissioner APPEARANCES: SUSAN HOCHBERG, ESQ. Attorney for Petitioner TODD M. RUBINSTEIN, ESQ. Attorney for Respondent
THE CITY OF NEW YORK CITY CIVIL SERVICE COMMISSION ---------------------------------------------------------------------X IN THE MATTER OF THE APPEAL OF: MORALES, JUANA DATE: 02/14/14 Appellant: -against- ADMINISTRATION FOR CHILDREN'S SERVICES Respondent: Pursuant to Section 76 of the New York State Civil Service Law ---------------------------------------------------------------------X PRESENT: NANCY G. CHAFFETZ, COMMISSIONER CHAIR RUDY WASHINGTON, COMMISSIONER VICE CHAIR CHARLES D. MCFAUL, COMMISSIONER AMANDA M. WISMANS DEPUTY COUNSEL FOR THE COMMISSION TODD RUBENSTEIN, ESQ. REPRESENTIVE FOR APPELLANT SUSAN HOCHBERG, ESQ. REPRESENTATIVE FOR RESPONDENT APPELLANT PRESENT STATEMENT On Thursday, February 6, 2014 the City Civil Service Commission called to order a hearing on the appeal of JUANA MORALES, Special Officer, NYC Administration for Children's Services (ACS), from a determination by the ACS, finding her guilty of charges of incompetency or misconduct and imposing a penalty of 25 DAYS SUSPENSION following an administrative hearing conducted pursuant to Civil Service Law Section 75.
PRESENT: THE CITY OF NEW YORK CITY CIVIL SERVICE COMMISSION In the Matter of the Appeal of JUANA MORALES Appellant -against- NEW YORK CITY ADMINISTRATION FOR CHILDREN'S SERVICES Respondent Pursuant to Section 76 of the New York State Civil Service Law CSC INDEX NO: 35547 NANCY G. CHAFFETZ, COMMISSIONER CHAIR RUDY WASHINGTON, COMMISSIONER VICE CHAIR CHARLES D. MCFAUL COMMISSIONER DECISION JUANA MORALES ("Appellant") appealed from a determination of the New York City Administration for Children Services ("ACS") finding her guilty of incompetency and misconduct and imposing a penalty of 25 days suspension following disciplinary proceedings conducted pursuant to Civil Service Law Section 75. 2014. The Civil Service Commission ("The Commission") conducted a hearing on February 6, This Commission has carefully reviewed the record in this case and the testimony adduced at the departmental hearing. Based upon this review, the Civil Service Commission finds no reversible error and affirms the decision and penalty imposed by the ACS.
NANCY G. CHAFFETZ, COMMISSIONER CHAIR RUDY WASHINGTON, COMMISSIONER VICE CHAIR CHARLES D. MCFAUL, COMMISSIONER Dated: Feb. 18, 2014